| Bogorova v Incorporated Vil. of Atl. Beach |
| 2008 NY Slip Op 04637 [51 AD3d 840] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Galina Bogorova, Respondent, v Incorporated Village ofAtlantic Beach, Appellant. |
—[*1] William Pager, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Lally, J.) dated December 20, 2007, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
In 1991 the defendant Incorporated Village of Atlantic Beach enacted a prior written noticelaw (see Code of Vil of Atlantic Beach, art III, §§ 200-13, 200-14, 200-15).On July 31, 2005 the plaintiff allegedly was injured when she tripped on a defect in a roadwayowned and maintained by the Village as a parking area for holders of parking permits, whichwere available to the general public upon payment of a fee. The plaintiff commenced this actionagainst the Village and, following the completion of discovery, the Village moved for summaryjudgment dismissing the complaint on the ground that it had not received prior written notice ofthe alleged defect. The Supreme Court denied the motion. We reverse.
"Where, as here, a municipality has enacted a prior written notice statute, it may not besubjected to liability for injuries caused by an improperly maintained roadway unless either it hasreceived prior written notice of the defect or an exception to the prior written notice requirementapplies" (Griesbeck v County ofSuffolk, 44 AD3d 618, 619 [2007]). The only recognized exceptions to the prior writtennotice requirement involve situations in which either the municipality created the defect throughan affirmative act of negligence, or a "special use" confers a special benefit upon the [*2]municipality (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; seeAmabile v City of Buffalo, 93 NY2d 471, 474 [1999]).
In addressing the claims presented in this case, the Village established its prima facieentitlement to judgment as a matter of law by presenting evidence (1) that a prior written noticelaw was in effect, (2) that the Village had not received prior written notice of the defect thatallegedly caused the plaintiff's injuries (see Rochford v City of Yonkers, 12 AD3d 433 [2004]), (3) that theVillage had not created the defect through an affirmative act of negligence (see Mallory v City of New Rochelle,41 AD3d 556, 557 [2007]), and (4) that it had not derived a special benefit from aspecial use of the roadway at the location at which the plaintiff fell (cf. Ocean Club v Incorporated Vil. of Atl.Beach, 6 AD3d 593 [2004]). In opposition, the plaintiff failed to raise a triable issue offact. Accordingly, the Supreme Court erred in denying the defendant's motion for summaryjudgment dismissing the complaint.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Ritter, Florio and Carni,JJ., concur.